Isler v. . Dewey , 75 N.C. 466 ( 1876 )

But two questions are made in this case:

1. Samuel Smith, the grantor in a deed of trust, was introduced and testified on behalf of plaintiff. The defendant then called a witness, who, after objection by plaintiff, was allowed to testify that the memory of the witness Smith was below medium. We think the evidence was competent.

Ever since Clary v. Clary, 24 N.C. 78, it has been (467) considered that all persons, and not experts alone, can give their opinion as to the mental capacity of the maker of a will or deed, and on the same reasoning they may do so as to a person who has been introduced as a witness in the cause on the trial. Bailey v. Pool,35 N.C. 404. A person entirely without memory is incompetent as a witness, and if his memory is weak naturally or has been impaired by disease or age his testimony will naturally have less weight with a jury than if his memory was sound and unimpaired. To prove of a witness that his memory is weak is a legitimate way of impeaching his testimony, and the opinions of those who know him may be resorted to for that purpose.

2. It is contended in this Court, thought the point does not appear to have been made below, that the deed in trust of February, 1867, is void by the force of the act ratified 11 September, 1861 (Laws 1861, 1862, 1863, 1864, republished, p. 8, sec. 12), which says that all deeds in trust thereafter made shall be void as to creditors unless they provide for an equal distribution of the proceeds of the property conveyed among all the creditors of the grantor. This act, however, was repealed by sec. 14, ch. 17, Laws 1866, and the proviso, which says that none of the provisions of the act except the first section should apply to suits on debts contracted since 1 May, 1865, does not prevent the repeal. The concluding words of the section, "but the remedy in such cases shall remain as existed in the year 1860," show clearly that the intent of the proviso was not to keep alive the act of 1861 for any purpose, but to exclude debts since May, 1865, from the delays provided by the act for prior debts. There is no error.

PER CURIAM. Affirmed.

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